NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERTO JULIAN GALICIA, 

Petitioner,

 v.

LORETTA E. LYNCH, Attorney

General, 

Respondent.

No. 14-70864

Agency No. A072-673-575

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted June 10, 2016

Pasadena, California

Before: KOZINSKI and WARDLAW, Circuit Judges, and KORMAN,

**

District Judge.

 

1. Galicia petitions for review of the BIA’s denial of his applications for

asylum, withholding of removal and protection under the Convention Against

FILED

OCT 24 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Edward R. Korman, United States District Judge for

the Eastern District of New York, sitting by designation.
page 2

Torture (CAT). We deny Galicia’s petition because the agency’s adverse

credibility finding was supported by substantial evidence. See Shrestha v. Holder,

590 F.3d 1034, 1039 (9th Cir. 2010).

Galicia failed to mention in his applications a “dramatic, pivotal event,”

Alvarez-Santos v. I.N.S., 332 F.3d 1245, 1254 (9th Cir. 2003), that allegedly

precipitated his flight from Guatemala. During his removal proceedings in 2012,

Galicia, for the first time, testified that he fled Guatemala after witnessing

guerrillas kill his father before his very eyes. But in the declarations filed with his

asylum applications, Galicia had stated that his father was kidnapped five days

after he left Guatemala. See Pal v. I.N.S., 204 F.3d 935, 938 (9th Cir. 2000)

(holding that major inconsistencies between petitioner’s testimony and application

support adverse credibility finding). This omission is not trivial and cannot be

explained by “the normal limits of human understanding and memory.” Shreshta,

590 F.3d at 1044. Based on this omission, the agency’s adverse credibility

determination was more than reasonable. See id. at 1041.

Galicia contends that the agency, in reaching its adverse credibility decision,

didn’t sufficiently consider his age at the time of the alleged persecution. Where

asylum applicants claim past persecution as children, the agency must determine

whether the harms they experienced rose to the level of persecution by
page 3

“measur[ing] the degree of their injuries by their impact on children of their ages.”

Hernandez-Ortiz v. Gonzales, 496 F.3d 1042, 1046 (9th Cir. 2007). But here, the

agency didn’t have to decide whether a nine year old who witnessed guerillas kill

his father suffered past persecution because Galicia failed to establish that the

alleged event indeed happened.

The agency’s adverse credibility finding is further supported by an

inconsistency between Galicia’s testimony that he never returned to Guatemala and

his statements to the contrary during his asylum and special rule cancellation

interviews, as indicated by the immigration officers’ notes. Galicia’s explanation

that his mother’s funeral was in El Salvador, not in Guatemala, doesn’t compel us

to hold otherwise. It doesn’t explain the time he apparently returned to Guatemala

to claim his land. Moreover, Galicia couldn’t have gone to El Salvador by bus, as

he initially testified, without going through Guatemala. Galicia could have flown

directly from Mexico to El Salvador, as he later testified, but it’s implausible that

he boarded the plane without any form of identification other than his birth

certificate.

Relying on Singh v. Gonzales, 403 F.3d 1081 (9th Cir. 2005), Galicia argues

that the immigration officers’ notes cannot form the basis of an adverse credibility

determination. But the features that made the asylum officer’s “conclusory” notes
page 4

in his “Assessment To Refer” a “potentially unreliable point of comparison to

[Singh’s] testimony” are absent here. Id. at 1087–90. In this case, the officers

took contemporaneous notes as Galicia made statements under oath, with the aid of

interpreters who were also under oath. See id.

In the absence of credible testimony, Galicia’s asylum and withholding of

removal claims fail. As for his CAT claim, the government argues that Galicia

waived it. But even if he didn’t, this claim would fail because it’s based on the

same incredible testimony, and Galicia doesn’t point to any other evidence that

compels us to conclude that it’s more likely than not that he would be tortured if

returned to Guatemala.

2. We do not decide whether Galicia’s asylum application was timely. Even

if the application was timely, the BIA properly denied it based on the adverse

credibility determination.

DENIED.